Workplace Safety and Insurance
Appeals Tribunal

Established in 1985, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) is the final level of appeal to which workers and employers may bring disputes concerning
workplace safety and insurance matters in Ontario. WSIAT has always been separate from and independent of the
Workplace Safety and Insurance Board.

Highlights of Noteworthy Decisions

The worker suffered a back injury in February 2007, for which she was granted a 16% NEL award. The worker appealed a decision of the Appeals Resolution Officer regarding the earnings basis for calculation of benefits.The worker worked part-time for the employer, approximately 27 hours per week. In addition, she had concurrent employment with a different employer, where she averaged about 30 hours per month. Her work at the concurrent employment was on a part-time casual basis. There was no number of guaranteed hours. The worker did not work any shifts in the concurrent employment in the four weeks prior to the accident.Board policy provides as a general rule that, in calculating a worker's short-term average earnings, the Board will take into account earnings from concurrent employment. However, the policy is also quite explicit that, in order to be considered concurrently employed, a worker must have received earnings from the concurrent employer in any of the four weeks prior to the accident. In this case, the worker did not receive any earnings from the concurrent employment during the four weeks prior to the accident. The Board policy was not inconsistent with s. 53 of the WSIA regarding determination of average earnings. The Board developed the policy to assist in administering the discretion regarding determination of short-term average earnings. The Board correctly applied the policy and concluded that earnings from the concurrent employment should not be included short-term earnings basis.The Panel found, however, that it was not appropriate to continue the short-term earnings basis for the long-term earnings basis in this case. The worker worked an average of 30 hours per month with the concurrent employer. The long-term earnings basis should include the worker's earnings with the concurrent employer.The appeal was allowed in part.